Tuesday, May 26, 2009

Who Was the Last Justice Who Had to Meet a Payroll?

The new Supreme Court nominee, Sonia Sotomayor, has occasioned much commentary about the role of “diversity” and experience in Supreme Court appointments. President Obama himself indicated that he “[viewed] the quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

I confess I'm not sure I want decisions that are "just." I want decisions that are proper interpretations of the Constitution, given the plain text and/or what was contemplated when it was written. But I'll play along.

The definition of "empathy" in the Oxford English dictionary is surprisingly short and sweet: "The power of projecting one's personality into (and so fully comprehending) the object of contemplation." It is taken for granted that this quickly translates, as does a desire for "diversity," into considerations primarily of the nominee’s tribal profile -- her sex and ethnicity/race. But one could easily imagine other types of nominee distinctiveness that more readily lend themselves to better-informed decisions.

Lawyer/non-lawyer. as far as I know, every Supreme Court justice in the 20th century has been a lawyer, but it wasn't always so. It is true that that the job of a justice requires proper interpretation of statutes and the Constitution, and proper use of relevant common-law precedent. But this is something any sufficiently intelligent individual who has a profound interest in the law could do. A non-lawyer would bring much greater diversity of experience with the question of the role of litigation and lawyers on American society. Many lawyers, particularly those who have come of age in the last 50 years, take it for granted that litigation leads to social improvement. But perhaps it doesn't; perhaps a non-lawyer could appreciate that more than a lawyer could.

Schooling. According to their current official bibliographies (PDF) every current justice (and Sandra Day O'Connor) has a law degree either from an Ivy League school or their non-East Coast equivalents, Northwestern and Stanford. Most Americans don't attend universities like that. Do we want people from community colleges, no college at all, Georgia or Portland State on the Supreme Court as well? I suppose not. The college admissions process is at its highest level still, despite the diversicrat corruption of it, fairly meritocratic, legacies and athletes aside. The people who get into the best colleges tend to be the most accomplished and smartest people, so using this as a screening device doesn't bother me much. But the question is worth asking, if diversity of experience is as important as we are led to believe.

Beneficiary or recipient of government restrictions on commercial freedom. Perhaps the most important diversity deficit of all. Having searched the official biographies, I can find no evidence that any current Supreme Court justice has ever, in the face of constantly changing rules handed down by the courts and legislatures, had the responsibility of filling orders or meeting a payroll. This is an ignorance with consequences. Those who impose rules without ever having to face the consequences of them lack a profound sort of empathy, one far more important than the empathy allegedly generated by skin color, or being the recipient of government benefits. Have Supreme Court justices lost their homes or their businesses to ravenous governments and the rent-seeking that powers them, or seen a business go from profitable to not because of some preposterous regulation? At this point in our history I would much rather have someone who has been on the business end of an eminent-domain order or restriction on freedom of contract than someone who has been the victim of "discrimination," or relied on extracted taxpayer funds (i.e., on "the government") to open doors.

The fact that it's probably been decades since we have had a Supreme Court justice who ever owned his own business is astonishing; the complete lack of empathy for the business owner is not to be found in Congress or, historically, in the higher reaches of the executive branch. But business owners appear to be (I am happy to be corrected) unheard of in recent decades in the Supreme Court. (Justice Stevens, in conspicuous contrast, did anti-monopoly work for the government.) There appears to be no kind of "empathy" for those who have to risk their own wealth to try to create goods and services that consumers are willing to pay for.

But some kinds of diversity, evidently, are more important than others.


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